Under the 1999 Montreal Convention. The 1999 Montreal Convention, after keeping the four fora agreed upon in the 1929 Warsaw Convention, and the two adopted in the 1961 Guadalajara Convention,191 established one additional jurisdiction known as the ‘fifth jurisdiction’.192 This newcomer193 permits, under limited conditions, to bring action in a territory where, at the time of the accident, the passenger holds principal and permanent residence. The United States strongly advo- cated for such an additional jurisdiction, arguing, among others things, that it would bring passengers further legal certainty.194 During the 1999 Montreal Conference, the delegate for Egypt noted that a fifth jurisdiction was not needed, explaining that: In the case of an accident, a carrier could be subjected to appear before many courts in different jurisdictions, […].195 The delegate for France highlighted that the coexistence of parallel proceed- ings increased the risk of ending up with opposite decisions: […] rather than advancing the unification and internationalization of law with a view to ensuring the identical treatment of persons under a single worldwide legal system, the result would be the further fragmentation of international law.196 Intense discussions continued around the adoption of this new forum.197 There was a fear that a practice of forum shopping would develop. It was suggested that the doctrine forum non conveniens, a domestic procedure law standard in many common law jurisdictions, could mitigate this risk.198 191 See, section 4.2.1.2. 192 1999 Montreal Convention, Articles 33 and 46. 193 Although already discussed in the 1971 Guatemala City Protocol. 194 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume II, Documents, Montreal 1999, p. 102: ‘The passenger’s home State is where most claimants are located, and that country’s courts would usually apply the laws and standards of recovery that would be anticipated by such passengers or claimants’. 195 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 143. 196 Ibid., p. 105. 197 Ibid., p. 143-187, 205, 235. 198 See, Ibid., p. 108. The Chairman also wondered whether it would be appropriate to codify and incorporate such doctrine in the convention. See, Ibid., p. 148,149 and 158. Th...
Under the 1999 Montreal Convention. It was only in 1999 that this purpose of balance was officially written in the fifth paragraph of the preamble of the 1999 Montreal Convention, as follows: Convinced that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Conven- tion is the most adequate means of achieving an equitable balance of interests […]. The Travaux Préparatoires of the 1999 Montreal Convention regularly under- line the importance of reaching an acceptable balance between the rights of the different actors, as highlighted here, for example, in the Minutes: […] to seek a balance between the interests of the passengers i.e. the users of international air transportation, the carriers, and the general public, to ensure that a great measure of equity would emerge which would command wide- spread and substantial support and which would enable a greater degree of uni- formity and ratifiability,46 However, in comparison to the situation that existed beforehand, where carriers in particular needed to be protected as part of an emerging industry, the paradigm shift already initiated in the 1955 Hague Protocol went even further with the appearance of consumer protection as a notion in the preamble of the 1999 Montreal Convention. The third paragraph of the preamble reads: Recognizing the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution. It is necessary to understand how the references to the importance of ‘ensuring protection of the interests of consumers’ (third paragraph of the preamble of MC99) and the need to achieve ‘an equitable balance of interests’ 45 See, for example, in the United Kingdom, Xxxxxx x. KLM Royal Dutch Airlines, (2002) UKHL 7, at 66. 46 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 110; See also, Ibid., p. 94: ‘[…] in striking that delicate balance between the interests of the consumer, the interest of the air carrier, and the need to ensure that there were was certainty, predictability and, as far as possible, uniformity in the system, it was necessary to achieve a text which could command widespread and substantial support […] so that it would indeed be ratifiable’. (fifth paragraph of the preamble of MC99)...
